On October 23, 1981 the criminal defendant was convicted of kidnapping in the first degree and related crimes. The defendant was sentenced to a term of 20 years to life imprisonment. Briefly, he and two others attempted to rob a man outside of the man’s apartment. The robbery was not successful and the intended victim was able to retreat back into his apartment, but in doing so he left his three-year-old daughter and his friend behind in the hallway. The friend talked his way out of the situation and left; the would-be robbers took the child and then concocted a scheme to blackmail the victim and his wife. But this effort was foiled as well, the men were arrested, and the child was recovered without harm.
None of the actions of the defendant or the other two men in any way contained or even intimated a sexual component. Nonetheless, upon his December 2001 release from prison to lifetime parole, the defendant was notified that the Sex Offender Registration Act (SORA) deems him to be a sex offender because, under the definition of kidnapping in the first degree, the victim of the kidnapping was less than seventeen years old and the offender is not the parent of the victim. Accordingly, he was told to appear in court so that his classification level could be determined. At that appearance, the defendant argued that because he was never accused of any form of sexual impropriety toward the child pornography or anyone else, applying the act to him was arbitrary and capricious and violated his constitutional rights.
By decision and order, the court determined that, pursuant to the statute, the defendant is subject to the classification and registration provisions of the Sex Offender Registration Act because his criminal act is among the enumerated crimes to which the act applies. A second hearing was ordered to determine what level of classification the defendant should be assigned. At that hearing the defendant, again through his appointed counsel, more specifically argued that application of the SORA to him violated his constitutional rights under the Due Process, Equal Protection, and Ex Post Facto Clauses.
However, those arguments were neither briefed nor fully developed on the record and, because these issues were inchoate, by decision and order, the court did not reach them. Instead, the defendant was duly classified as a level 1 Sex Offender, thereby imposing the lowest registration level. However, the decision also noted the seeming unfairness of applying the SORA to the defendant and labeling him a sex crimes offender when there was no sexual offense inherent in the facts of the defendant’s crimes, and the two codefendants, both of whom were also convicted of kidnapping but were released from prison and completed their parole before the SORA went into effect, are not subject to the act.
Accordingly, by order to show cause, the court’s order was stayed upon the defendant’s motion to reargue the prior determinations, and this time he specifically delineated the impact of the SORA upon him.
The defendant argues that, because he did not commit any form of sexual abuse, the application of the SORA to him punitively aggravated his crime, making it greater than it was at the time it was committed. However, as the People respond and the Supreme Court’s decision have settled the question conclusively. Understandably, the defendant has abandoned any mention of this prong of his argument in his reply memorandum.
To Be Cont…….